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NOT REPORTABLE
REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENTCase no: I 1839/2015
In the matter between:
AN PLAINTIFF
And
FN DEFENDANT
Neutral citation: AN v FN (I 1839/2015) [2017] NAHCMD 154 (6 June 2017)
Coram: UNENGU AJ
Heard: 15 February 2017, 9 March 2017Delivered: 6 June 2017
Flynote: Husband and Wife – Divorce – Claims by Plaintiff – Counterclaim by
Defendant – Malicious Desertion – Married in community of property.
Husband and wife – Spousal Maintenance – Defendant in need of such maintenance
– proved on balance of probabilities – Court exercised its discretion in awarding such
maintenance as plaintiff does not earn a regular income.
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Summary: This is a divorce matter instituted by the plaintiff (husband) against the
defendant (wife) based on allegations of constructive desertion. The wife has
entered a notice of intention to defend the action and in return instituted a
counterclaim, also claiming an order for restitution of conjugal rights and failing
compliance therewith, a decree of divorce on the basis of malicious desertion.
The main issues determined for adjudication before this court were: (a) which party
has succeeded in discharging his or her onus of proving malicious desertion which
would result in the granting of a restitution order, (b) whether the defendant is
entitled to 50% of the proceeds from the sale of the motor vehicle, (c) whether the
defendant is jointly liable for 50% of the close corporation’s debts and (d) whether
the defendant is entitled to spousal maintenance.
Held that the plaintiff’s version of why the parties’ marriage broke down is unlikely
and untruthful.
Held that the defendant discharged the onus resting on her in respect of her
counterclaim in that the plaintiff’s conduct amounts to malicious desertion and that
he acted with the intention to bring an end to the marital relationship between the
parties.
Held that the defendant is not jointly liable with the plaintiff for the close corporation’s
debts.
Held that no sufficient evidence was produced to indicate the true value of the motor
vehicle at the time of the sale and accordingly it is not conclusive whether the sale
thereof was at a loss to the joint estate.
Held that a case was made out for spousal maintenance in favour of the defendant
but the court exercised its discretion in setting the amount.
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ORDER
1. The plaintiff’s action for divorce against the defendant is dismissed with costs.
2. The matter is referred to the case management roll of the Honourable Justice
Geier
3. The court grants judgment for the defendant for an order for the restitution of
conjugal rights and orders the plaintiff to return to or receive the defendant on
or before, the 18th day of July 2017, failing which, to show cause, if any, to this
court on the 15th day of August 2017 at 08h30, why:
3.1 The bonds of the marriage subsisting between the plaintiff and the
defendant should not be dissolved.
3.2 Custody of the minor child born between the parties should not be
awarded to the defendant subject to the plaintiff’s right of reasonable
access.
3.3 The plaintiff should not pay maintenance in the amount of N$1 000.00
per month in respect of the minor child, which amount is to escalate at
a rate of 8 % per annum on the anniversary date of the final order of
divorce.
3.4 The plaintiff should not pay all pre-school, primary and secondary
school expenses as well as extra-mural activities of the minor child.
The defendant has to consult with the plaintiff about the choice of
school of the minor child.
3.5 The plaintiff should not pay the amount of N$1 000.00 per month
towards the accommodation of the defendant, which shall be inclusive
of water expenses, for a year from the date of the final order of divorce.
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3.6 The joint estate should not be divided.
JUDGMENT
UNENGU AJ:
Introduction
[1] The plaintiff instituted divorce proceedings against the defendant on the 11
June 2015. The parties were married in community of property and are still so
married. One child was born prior to the marriage and was subsequently legitimized
by the marriage.
[2] In terms of the action instituted, the plaintiff claims that the defendant
constructively deserted him and accordingly he seeks an order for the restitution of
conjugal rights, failing compliance therewith, a final order of divorce.
[3] The defendant defended the action and lodged a counterclaim claiming that
the plaintiff maliciously deserted her and accordingly she seeks an order for the
restitution of conjugal rights, failing compliance therewith, a final order of divorce; as
well as maintenance for their minor child and herself.
[4] After the matter was case managed, the only issues still in dispute and
subsequently ripe for trial were the following:
1. who was responsible for the breakdown of the marriage,
2. division of the joint estate,
3. whether the plaintiff had to obtain consent from the defendant before he could
sell the vehicle,
4. whether the defendant is responsible for 50% of the debt incurred by the
plaintiff as a co-owner of the close corporation, and
5. whether the defendant is entitled to maintenance from the plaintiff.
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[5] The above points fall within ambit of issues to be adjudicated upon by this
court and was set down for trial from 15 – 16 February 2017.
Background
[6] The plaintiff is AN, an adult male, self-employed businessman, residing in the
Republic of Namibia. The defendant is FN, an unemployed adult female, residing in
the Republic of Namibia.
[7] The parties were married on the 04 August 2012 in Swakopmund, in
community of property. There was one minor child born prior to the marriage and
was subsequently legitimized by the marriage.
[8] The plaintiff in his particulars of claim alleges constructive desertion in that the
defendant:
‘6.1 physically abused the plaintiff by assaulting him on a regular basis;
6.2 verbally abused the plaintiff on a regular basis;
6.3 engaged in unnecessary and unsolicited quarrels with the plaintiff;
6.4 emotionally abused the Plaintiff for the duration of the marriage;
6.5 did not communicate properly with the plaintiff;
6.6 tore his clothes and destroy his personal belongings
6.7 he did not show any respect towards the Plaintiff.’1
[9] Accordingly, the plaintiff prays for an order in the following terms:2
‘1 (a) Restitution of Conjugal Rights and failing compliance therewith,
(b) A final Order of Divorce;
2. Plaintiff shall pay maintenance in the amount of N$1 000-00 per month in respect of
the minor child directly to the plaintiff which amount is to escalate at a rate of 8 % per
annum on the anniversary date of the final order of divorce.
1 Pleadings bundle, pages 5 – 6.2 Ibid.
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3. Plaintiff shall pay all pre- school, primary and secondary school expenses as well as
extra mural activities of the minor child. The defendant has to consult the plaintiff
about the choice of school of the minor child.
4. The plaintiff shall pay N$ 2500.00 per month towards the accommodation of the
defendant which shall be inclusive of water expenses.
5. Division of the joint estate.
6. Cost of suit. (only if the action is defended)
7. Further and/or alternative relief.’
[10] The defendant responded to these allegations by not only filing her plea3, but
also filing a counterclaim alleging malicious desertion on the plaintiff’s part, in that:
‘3.1 Plaintiff fails/refuses to communicate with Defendant meaningfully;
3.2 Plaintiff left the common home since the year 2014;
3.3 Plaintiff is engaged an extra marital affair with one HH with whom he currently
resides;
3.4 Plaintiff bought a vehicle for the family which he subsequently transferred into the
name of the said HH without the consent of the Defendant;
3.5 Despite the Defendant’s efforts to resolve the problem between the parties, the
Plaintiff refuses to change and reconcile.’4
[11] Accordingly the defendant in her counterclaim seeks an order in the following
terms:
‘1 (a) An order for the restitution of conjugal rights and failing compliance therewith,
(b) A final decree of divorce;
2. An order that the Plaintiff shall pay maintenance in the amount of N$ 2 000.00 per
month in respect of the minor child, which amount is to escalate at a rate of 8 % per
annum on the anniversary date of the final order of divorce;
3 Pleadings bundle, pages 19 - 21.4 Pleadings bundle, page 22.
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3. An order that the Plaintiff shall pay all pre-school, primary and secondary school
expenses as well as extra mural activities of the minor child. The defendant has to
consult the Plaintiff about the choice of school of the minor child;
4. An order that the Plaintiff shall pay the amount of N$ 2 500.00 per month towards the
accommodation of the Defendant which shall be inclusive of water expenses;
5. Division of the joint estate;
6. Cost of suit;
7. Further and/or alternative relief’5
[12] As the matter became defended, it was placed on the judicial case
management roll. Unfortunately, the parties failed to settle during mediation and
accordingly a pre-trial conference was held. In their pre-trial report, which was
adopted and made an order of the court, the parties agreed on the aspect of custody
and control of their minor child as well as maintenance of their minor child.
[13] The parties however could not settle the following issues:
‘1. Whether the plaintiff is the guilty party and responsible for the break-up of the
marriage;
2. Whether the defendant is the guilty party and responsible for the break-up of the
marriage;
3. Division of the joint estate;
4. Whether plaintiff required the consent of the defendant to sell the vehicle;
5. Whether defendant is liable/responsible for one half of the debt of the business of
plaintiff which amounts to N$ 1 345 654.00;
6. Whether defendant had to serve her counterclaim on HH since she is referred to by
name in the counterclaim;
7. Whether defendant is entitled to receive maintenance from the plaintiff.’6
Merits
5 Pleadings bundle, page 23.6 Joint proposed pre-trial order filed 24 November 2016, page 3 thereof. Joint proposed pre-trial order made an order of court on 06 December 2016.
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Malicious desertion/Constructive desertion
Legal principles
[14] In the case of Kagwe v Kagwe, the court stated the following:
‘Three things must be proved by a plaintiff in the preliminary proceedings for a
restitution order: first that the court has jurisdiction; second that there has been and still is a
marriage; and third, that there has been malicious desertion on the part of the defendant.
The onus of proving both the factum of desertion and the animus deserendi rests throughout
upon the plaintiff. The restitution order will not be made if after issue of summons the
defendant returns or offers to return to the plaintiff, for in that case there is no longer
desertion.’7
[15] There are two grounds for divorce in our common law namely:
1) adultery and
2) malicious desertion, which includes constructive desertion.
[16] Since the parties do not rely on adultery as a ground of divorce, I will not deal
with that ground.
‘Nathan opines that:
“Malicious desertion takes places when a spouse, without just cause, either physically
leaves or remains away from the matrimonial home intending not to return to it, or otherwise
so comports himself as to evince an intention to bring the marriage relationship to an end.
Constructive desertion is a species of malicious desertion, it takes place when the defendant
with intent to put an end to the marriage does not leave the matrimonial home himself but is
guilty of conduct which either compels the other spouse to do so or renders it clear that the
marriage relationship can no longer continue”.’8
[17] Hahlo states that malicious desertion consists of two elements, namely:9
a) factum of desertion and
7 (I 1459/2011) [2013] NAHCMD 71 (30 January 2013), paragraph 9.8 Likando v Likando (I 1384/2011) [2013] NAHCMD 265 (30 September 2013), paragraph 11 – 13.9 Halo, H R (3rd Ed).1969.The South African Law of Husband and Wife.Cape Town: Juta & Co Ltd, page 387.
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b) animo deserandi.
[18] Furthermore, there are four forms of malicious desertion, namely: 10
1) Actual desertion - where one party actually leaves the matrimonial home with
the intention not to return.
2) Constructive desertion - when an innocent spouse leaves the matrimonial
home, the defendant with the intent to bring the marital relationship to an end
drives the plaintiff away by making life in the matrimonial home dangerous or
intolerable for him or her. Hahlo proceeds and argues that three requirements
must be satisfied if an action for divorce on the ground of constructive
desertion is to succeed:
(i) the consortium of spouse must have come to an end as the result of the
plaintiff’s having left the defendant;
(ii) it must have been the defendant’s unlawful conduct that caused the
plaintiff to leave; and
(iii) the defendant’s conduct must have been attributable to a fixed intention
to put an end to the marriage.
3) Refusal of marital privileges, and possibly,
4) Sentence of death or life imprisonment.
Arguments
[19] On this aspect, the plaintiff himself testified that the defendant had abused
him, inflicting physical, emotional and verbal abuse; and as a result of such
intolerable circumstances, he left the common home in 2014 and moved in with
another third party, namely Ms. HH.11 The defendant in her testimony denied abusing
the plaintiff and questioned such abuse as there was no medical proof produced to
corroborate his allegations.12
10 Likando case, paragraph 13.11 Record of proceedings, pages 7 – 8.12 Record of proceedings, pages 49.
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[20] In addition, Ms. Ntelamo-Matswetu, counsel for the defendant, argued that the
plaintiff never denied his adulterous affair with Ms. HH and that he moved into the
house of Ms. HH immediately after leaving the common home in 2014. Also, counsel
points out to this court that that the intention of the plaintiff was made very clear, that
is to desert the defendant, in that he did not try to resolve the ‘issues’ between the
parties or seek outside help, but rather left the defendant and ran into the arms of
another woman, namely Ms. HH. The plaintiff however counters this argument,
alleging that his affair had nothing to do with him leaving the common home. He
explained in his testimony that his relationship with Ms. HH started only after he left
the common home and moved in with Ms. HH, after his wife, the defendant, had
abused him.
[21] Further, the defendant placed it on record that the plaintiff left the common
home as a result of his adulterous affair with Ms. HH and not due to the fictitious
abuse allegations propounded by the plaintiff. The defendant acknowledged that the
plaintiff was intimately involved with Ms. HH, however, would condone his behaviour
and reconcile with him should he put an end to such adulterous affair. The plaintiff
testified that he has no intention to reconcile with his wife, the defendant, as a result
of the abuse he endured and that he had moved on.
Who is responsible for the breakdown of the marriage?
[22] It is common cause that the court has jurisdiction in this matter and that the
parties were married and are still so married. The remaining and therefore the main
question which arises is whether the plaintiff has succeeded in discharging his onus
of proving constructive desertion which would result in the granting of a restitution
order.
[23] The onus of proving both the factum of desertion and the animus deserendi
rests throughout upon the plaintiff.13 It is common cause between the parties that the
plaintiff left the common home in 2014, so he is the deserter and not the defendant.
However, the reason why the plaintiff left is pivotal in establishing whether or not he
is the guilty party or whether the defendant is. It is apparent from the evidence
13 Munyelutha case, paragraph 11.
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before me that the parties are playing the ‘blame game’ as to who is responsible for
breakdown of the marriage. In other words, two mutually destructive versions have
been placed before me as to why the plaintiff left the common home and I now have
to decide whether the plaintiff or the defendant is the guilty party. In the case of
Munyelutha v Munyelutha,14 the court was faced with two mutually destructive
versions as to why the marriage broke down. The court in deciding which version it
should accept stated that it should decide which version to believe on the
probabilities and as a starting point it should look at the undisputed facts which both
sides accept, and add to them such other facts as seem very likely to be true.15
[24] Ms. Petherbridge, counsel for the plaintiff, tried to make out a case that the
plaintiff left the common home as the defendant made it intolerable for him to stay
there as she was abusing him. Further, the plaintiff himself testified that when he left
the common home he moved in with Ms. HH, at that stage only a friend, not in a
romantic relationship yet. Ms. Ntelamo-Matswetu, counsel for the defendant, argued
that there was no abuse whatsoever by the defendant; but rather that the plaintiff
moved out of the common home in order to move in with and continue his love affair
with Ms. HH. It is very difficult for this court to accept that the plaintiff and Ms. HH
were only friends before he left the common home. It is more likely that the plaintiff
opted to move out of the common home because he wanted to move in with Ms. HH,
with whom he was and is still romantically involved with. The court also rejects the
plaintiff’s version that he was abused by the defendant, because there is no
evidence to corroborate his allegations, whether it be medical evidence or someone
to testify that the plaintiff confided in him/her about the alleged abuse, etc.
[25] Consortium only came to an end in April 2016, after the plaintiff and the
defendant travelled to the north,16 accordingly after the alleged abuse which led the
plaintiff to leave the common home in 2014. It is for that reason that the court does
not accept the plaintiff’s allegation that it was the defendant’s abuse which caused
the plaintiff to leave the common home and accordingly the defendant could not be
said to have had a fixed intention to put an end to the marriage. Therefore, his
version of why the parties’ marriage broke down is unlikely and untruthful. On the
contrary, she (defendant) offered during her testimony that she would condone the
14 (I 201/2013) [2014] NAHCMD 173 (04 June 2014).15 Munyelutha case, paragraph 22.16 Record of proceedings, p 69.
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plaintiff’s adultery if he (plaintiff) puts an end to the affair. The court therefore finds
that the plaintiff has maliciously deserted the defendant and that the defendant
discharged the onus resting on her in respect of her counterclaim in that the
plaintiff’s conduct amounts to malicious desertion aimed at bringing an end to the
marital relationship between the parties.
To conclude this point, it has been established that both parties do not rely on
adultery as a ground of divorce, but rather malicious and/or constructive desertion.
The plaintiff has during his testimony expressed the view that he has no intention to
return to the common home and reconcile with the defendant. The defendant on the
other hand has tendered an offer to the plaintiff that she would welcome him back
into their home and forgive his adulterous behaviour if he (plaintiff) puts an end to the
relationship with Ms. HH. As I have already established that the plaintiff has
maliciously deserted the defendant and the defendant has offered to condone the
adulterous affair of the plaintiff, the court under the circumstances dismisses the
claim of the plaintiff and upholds the counterclaim of the defendant.
Sale of the vehicle
Legal principle
[26] It is common cause between the parties that the plaintiff bought a motor
vehicle by way of a hire purchase agreement. The plaintiff fell into a financial
dilemma and accordingly sold this vehicle to a third party, namely Ms. HH, without
the consent of the defendant. Ms. HH bought such vehicle from the plaintiff for
N$150 000.00. The motor vehicle accordingly formed an asset of the joint estate,
but also a debt of the joint estate in respect of the hire purchase agreement.
[27] The issue raised in respect of this vehicle is that the vehicle formed an asset
in the joint estate and accordingly the plaintiff should have obtained consent from the
defendant to sell the said vehicle, but due to his failure in obtaining such consent, the
defendant claims that she is entitled to 50% of the proceeds from the sale of the
vehicle. Accordingly, the question that arises is whether the defendant is entitled to
50% of the proceeds from the sale of the vehicle.
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[28] Section 7(1)(e) of the Married Persons Equality Act (MPEA) states the
following:
‘7. (1) Except in so far as permitted by subsection (4) and (5), and subject to sections 10
and 11, a spouse married in community of property shall not without the consent of the other
spouse –…
(e) alienate, pledge, or otherwise burden any furniture or other effects of the common
household forming part of the joint estate;…’
[29] What is meant by ‘effects’ in the above sub-section remains subject to
interpretation as the MPEA does not provide a definition therefore. The Law
Dictionary defines the word ‘effects’ as ‘property’ or ‘worldly substance’.17 The
Merriam-Webster Dictionary define the word ‘effects’ as ‘moveable property’.18
The English Oxford Living Dictionaries define the word ‘effects’ as ‘personal belongings’.19
[30] Should a spouse married in community of property alienate certain ‘effects’ of
the common household without his/her spouse’s consent, section 8 of the MPEA
becomes operational, particularly and in this matter section 8(1)(b) and section 8(2)
and section 8(6) applies:
‘8. (1) If a spouse married in community of property enters into a transaction with
another person without the consent required by the provisions of section 7, or without leave
granted by a competent court in terms of section 10 or contrary to an order of a court in
terms of section 11, and – …
(b) that spouse knows or ought reasonably to know that he or she will probably not obtain
such consent or leave or that the power concerned has been suspended, as the case may
be, and the joint estate suffers a loss as a result of that transaction, an adjustment shall
effected in favour of the other spouse –
(i) upon division of the joint estate; or
17 Available at: http://thelawdictionary.org/effects/; last accessed 10 May 2017 [own emphasis].18 Available at: https://www.merriam-webster.com/dictionary/effect; last accessed 10 May 2017 [own emphasis].19 Available at: https://en.oxforddictionaries.com/definition/effect; last accessed 10 May 2017 [own emphasis].
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(ii) upon demand of the other spouse at any time during the subsistence of the marriage.
(2) In determining for the purposes of subsection (1)(b) whether or not a joint estate has
suffered any loss as a result of the alienation of any property, regard shall be had not only to
the economic value of the property in question but also to any sentimental replacement
value which, at the time of alienation of that property, such property had to the spouse
without whose consent the property was alienated.
…
(6) For the purposes of paragraph (b) of subsection (1), if it is proved in any civil proceedings
that a spouse entered into a transaction without the consent required in terms of section
7(1), or leave granted in terms of section 10, it shall be presumed, unless the contrary is
proved, that he or she knew that he or she would probably not obtain the consent or leave in
question.’
[31] In summary, if any ‘effects’ forming part of the common household is sold by
one spouse married in community of property without the consent of his/her spouse,
the latter spouse will have to prove that the joint estate suffered loss and as a result
an adjustment in favour of him/her should be effected upon division of the joint
estate.
Arguments
[32] The plaintiff does not dispute that he had bought a motor vehicle on hire
purchase from a financial institution. He further admits that such vehicle was sold to
Ms. HH, at a time when he fell into financial difficulty, without the consent of his wife,
the defendant. He also testifies that Ms. HH had given him N$150 000.00 in cash for
the said vehicle.
[33] Ms. Petherbridge, counsel for the plaintiff, argues that although the vehicle
formed an asset in the joint estate, such vehicle is no more and the proceeds of the
sale of that vehicle was used to settle the debts in the joint estate- therefore there
was no prejudice suffered. To further her argument, Ms. Petherbridge states that if
the defendant claims that the vehicle, which formed part of the joint estate, was
alienated without her consent, the burden of proof lies on her (defendant) to
establish that she suffered prejudice as a result of the sale of the vehicle, relying on
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the case of Stipp and Another v Shade Centre and Others20 as authority. Further,
Ms. Petherbridge quotes the case of Pretorius v Pretorius21 outlining that such onus
is not easy to discharge in that a wife will have to prove that viewing the
circumstances subjectively rendered it improbable that her husband did not have her
rights in mind when he entered into the impugned transaction and that he
appreciated that it would not prejudice those rights and viewing the matter
objectively, she would have to prove that in all circumstances it was unreasonable
for her husband to have entered into such transaction. Ms. Petherbridge in
conclusion submits that the defendant during evidence as well as on the papers
failed to prove that she suffered any prejudice.
[34] Ms. Ntelamo-Matswetu, counsel for the defendant, produces a counter
argument placing reliance on section 7(1)(e) of the MPEA.22 She states that this
section prohibits a spouse married in community of property to alienate inter alia any
property forming part of the joint estate without the consent of his/her spouse. In
other words, the defendant argues that the plaintiff did require the consent of the
defendant before he alienated the vehicle. Be that as it may, the consequence of his
action accordingly is found in section 8(1)(b) of the MPEA. Counsel for the
defendant stated that the plaintiff himself testified that the value of the vehicle was
approximately between N$500 000.00 and N$600 000.00 at the time of purchase.
Furthermore, of this amount N$200 000.00 was owed to the financial institution at
the time of alienation. Accordingly, the value of the vehicle at the time of alienation
was N$400 000.00. Defendant therefore argues that the car was sold to Ms. HH, the
plaintiff’s girlfriend, for a mere N$150 000.00 which is an amount far less than the
true value of the vehicle. In addition, counsel points out that the plaintiff still benefits
from the alienation as it now belongs to his girlfriend. Ms. Ntelamo-Matswetu
submits that the defendant has naturally suffered prejudice from the sale of the
vehicle and accordingly an adjustment in favour of the defendant’s share in the joint
estate should be made in the amount of N$200 000.00 when the joint estate is so
divided.
Is the defendant entitled to 50% of the proceeds from the sale of the motor vehicle?
20 Case No. SA 29/2006 at paragraph 13.21 1948 (1) SA 250 (A).22 Act 1 of 1996.
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[35] This court will deem it safe to include the said vehicle as an example of
‘effects’ in terms of section 7(1)(e) of the MPEA. Subsequently, it follows that
consent by the defendant was required in respect of the alienation of the vehicle by
the plaintiff.
[36] The defendant pointed out to this court that during the testimony of the
plaintiff, the plaintiff admitted that the value of the vehicle was somewhere between
N$500 000.00 and N$600 000.00 at the time when it was purchased. Also, when the
vehicle was alienated, it was sold for N$150 000.00. In respect of the amount owed
in terms of the hire purchase agreement, the plaintiff testified that he owed
approximately N$200 000.00 to the financial institution. Accordingly, the vehicle was
sold at a loss, meaning that the plaintiff still owed N$50 000.00 to the financial
institution and the vehicle’s value was approximately N$400 000.00.
[37] There was no documentation produced in this court as to the value of the
vehicle or with how much the vehicle depreciated in respect of the time it was used
before alienation, besides the testimony of the plaintiff, who is not an expert in
valuating vehicles. This court also acknowledges that the proceeds from the sale of
the vehicle were used to pay the debts of the joint estate and not used by the plaintiff
to entertain his mistress for example. In light of the above and due to the fact that no
sufficient evidence was provided regarding the value of the vehicle at the time it was
alienated, this court cannot make a finding in favour of the defendant, that is that she
is entitled to 50% of the proceeds from the sale of the vehicle.
Debts of the close corporation
Legal principle
[38] The plaintiff in this matter is a businessman and it is common cause that he
has 50% member’s interest in a business called ‘Road to success building
Construction CC’. During trial and in terms of the evidence produced before the
court, it is common cause that the close corporation (cc) was experiencing financial
difficulty and had/has serious debts. In Mwinga v Mwinga, the court held that
marriage at common law creates community of property and profit and loss.23 Due to
this principle, the question that arises here is whether, because the plaintiff has 50% 23 (I 1439/2013) [2014] NAHCMD 382 (12 December 2014), paragraph 10.
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member’s interest in the cc and is married to the defendant in community of property,
the defendant is jointly liable with the plaintiff for 50% of the debts of the cc?
[39] In terms of the Close Corporations Act, 26 of 1988, section 2 thereof refers to
the juristic personality of close corporations:
‘(2) A corporation formed in accordance with the provisions of this Act is on
registration in terms of those provisions a juristic person and continues, subject to the
provisions of this Act, to exist as a juristic person notwithstanding changes in its membership
until it is in terms of this Act deregistered or dissolved.
(3) Subject to the provisions of this Act, the members of a corporation shall not merely by
reason of their membership be liable for the liabilities or obligations of the corporation.’24
[40] In other words, a CC is a juristic person which means that it is ‘a body
recognized by the law as being entitled to rights and duties in the same way as a natural or
human person, the common example being a company’25 or can be defined as including ‘a firm, corporation, union, association, or other organization capable of suing and being
sued in a court of law.’26
[41] In terms of section 70 of the CC Act, ‘no member of a corporation shall in the
winding-up of the corporation be liable for the repayment of any payment made by the
corporation to him by reason only of his membership, if such payment complies with the
requirements of section 51(1).’27 The concept of separate legal personality’ of a CC is
not absolute. The CC Act provides that a member will only be held personally liable
for the debts of the CC if it is proven that such member has breached his/her
fiduciary duty; if a member has not acted with the necessary care and skill that may
be required by such member due to his knowledge and skill; where the member
acted recklessly, with gross negligence, or with the intent to defraud any person
dealing with the CC; or where a competent court finds that the incorporation of, or
any use of, that corporation, constitutes a gross abuse of the juristic personality of
the corporation as a separate entity; as per the following sections:28
24 Section 2(2) of Act 26 of 1988.25 The Free Dictionary by Farlex. Available at: http://legal-dictionary.thefreedictionary.com/juristic+person; last accessed on 11 May 2017.26 Available at: http://sociologyindex.com/juristic_person.htm; last accessed on 11 May 2017.27 Section 70 of Act 26 of 1988.28 Sections 42(3)(a), 43(1) &(2), 64(1) & (2) and 65 of Act 26 of 1988.
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’42. Fiduciary position of members
…
(3)(a) A member of a corporation whose act or omission has breached any duty arising from
his fiduciary relationship shall be liable to the corporation for-
(i) any loss suffered as a result thereof by the corporation; or
(ii) (ii) any economic benefit derived by the member by reason thereof.’
‘43. Liabilities of members for negligence
(1) A member of a corporation shall be liable to the corporation for loss caused by his failure
in the carrying on of the business of the corporation to act with the degree of care and skill
that may reasonably be expected from a person of his knowledge and experience.
(2) Liability referred to in subsection (1) shall not be incurred if the relevant conduct was
preceded or followed by the written approval of all the members where such members were
or are cognisant of all the material facts.’
’64. Liability for reckless or fraudulent carrying on of business of corporation
(1) If it at any time appears that any business of a corporation was or is being carried on
recklessly, with gross negligence or with intent to defraud any person or for any fraudulent
purpose, a Court may on the application of the Master, or any creditor, member or liquidator
of the corporation, declare that any person who was knowingly a party to the carrying on of
the business in any such manner, shall be personally liable for all or any of such debts or
other liabilities of the corporation as the Court may direct, and the Court may give such
further orders as it considers proper for the purpose of giving effect to the declaration and
enforcing that liability.
(2) Without prejudice to any other criminal liability incurred where any business of a
corporation is carried on in any manner contemplated in subsection (1), every person who is
knowingly a party to the carrying on of the business in any such manner, shall be guilty of an
offence.’
‘65. Powers of Court in case of abuse of separate juristic personality of
corporation
19
Whenever a Court on application by an interested person, or in any proceedings in which a
corporation is involved, finds that the incorporation of, or any use of, that corporation,
constitutes a gross abuse of the juristic personality of the corporation as a separate entity,
the Court may declare that the corporation is to be deemed not to be a juristic person in
respect of such rights, obligations or liabilities of the corporation, or of such member or
members thereof, or of such other person or persons, as are specified in the declaration,
and the Court may give such further order or orders as it may deem fit in order to give effect
to such declaration.’
Arguments
[42] Counsel for the plaintiff argued that it is no secret that the CC has large
amounts of debts as per the bank statements presented to court. Ms. Petherbridge
continues to argue that the defendant only wants to share in the assets and not the
liabilities of the business, which in law is not correct as she is jointly liable with the
plaintiff for the 50% of the CC’s debts by virtue of her marital regime.
[43] Counsel for the defendant disagrees with the arguments presented by the
plaintiff because a CC enjoys a separate and distinct legal personality from its
members in terms of section 2 of the CC Act. Accordingly, the defendant cannot be
held liable for the debts of the CC.
Is the defendant liable for 50% of the debts of the close corporation in which her husband is a co-
owner?
[44] It is clear that the pleadings before me are that of a divorce, not a winding up
application nor pleadings concerning anything regarding the determination of
solvency of the CC. Furthermore, the CC Act does provide for a separate legal
personality from its members, unless in exceptional circumstances as discussed
above, which have not been proven in this instance. I hereby agree with counsel for
the defendant that the defendant cannot be held liable, together with the plaintiff, for
50% of the debts of the CC.
Maintenance for the minor child
20
[45] It is not in dispute that custody and control of the parties’ minor child should
be awarded to the defendant and that the plaintiff shall maintain the parties’ minor
child. What is in dispute is the amount of maintenance the plaintiff should pay each
month to the defendant to be used for the minor child. Plaintiff offered to pay N$1
000.00 per month, but the defendant rejected this, requesting this court to order the
plaintiff to pay N$2 000.00 per month as maintenance for their minor child.
[46] The court in the matter of Erastus Hailonga Andreas v Johanna Kathindi, laid
down the principle in respect of maintaining a minor child as follows:
‘It has been said authoritatively that in making an order for the maintenance of a child
of the family the Court ought to take into account that the duty of supporting a child of the
dissolved marriage is common to the divorced parents, and the incidence of the duty in
respect of each parent depends upon their relative means and circumstances and the
needs of the child from time to time.’29
[47] The plaintiff is unemployed and the defendant is self-employed at the
moment. The plaintiff is a businessman and has always been the breadwinner in the
family. The parties agreed that the plaintiff will maintain their minor child, although
custody and control is awarded to the defendant subject to the plaintiff’s right of
reasonable access. In addition, the plaintiff offered to pay all pre-school, primary
and secondary school expenses as well as extra-mural activities of the minor child.
They also agreed that the defendant has to consult the plaintiff regarding the type of
school their minor child will attend.
[48] This court must be fair to both parties, taking into account their circumstances
and the needs of the minor child. As the minor child is relatively young and her
needs are relatively few at this stage and the plaintiff currently does not earn a
regular income, this court will award an maintenance order in the amount of N$1
000.00 per month, which amount is to escalate at a rate of 8 % per annum on the
anniversary date of the final order of divorce.
Spousal maintenance
29 Case No.: I 1382/2010 at paragraph 10 [my own emphasis].
21
[49] Although the Married Persons Equality Act 1 of 1996, repealed certain
sections of the Matrimonial Affairs Ordinance 25 of 1955, section 5(1) of the
Ordinance remains in force and effect in Namibia. Section 5 of the Ordinance
provides as follows:
‘5 (1) The Court granting a divorce may, notwithstanding the dissolution of the
marriage –
(a) Make such an order against the guilty spouse for the maintenance of the
innocence spouse for any period until death or until remarriage of the
innocence spouse, whichever, event may first occur, as the Court may
deem fit.’
In Negongo v Negongo, Van Wyk, AJ quoted the matter of BA De Klerk v CR De
Klerk, where Ueitele J stated that ‘I accordingly find that section 5 of Ordinance 25 of
1955 does not prevent the court from granting an order of maintenance in favour of a guilty
spouse who is in need of it.’30
[50] However, Van Wyk, AJ also acknowledges the principle as laid down by the
court in Neil Ronald Samuels v Petronella Samuels, in that ‘the innocent party is not
entitled to be placed in the same position in regard to maintenance as if she were still
married to the husband.’31 The party seeking such maintenance must accordingly
prove on a balance of probabilities that he/she is in need of it.32
Arguments
[51] Ms. Petherbridge, counsel for the plaintiff, submits that the defendant claims
N$2 500.00 in spousal maintenance from the plaintiff. The plaintiff admits that he
has always provided for his family and that the defendant’s only source of income is
derived from selling items along the road. Counsel, however, points out to this court
that he is in no position to make a contribution towards the defendant’s
accommodation at all, due to him experiencing financial difficulty in his business
undertaking.
30 (I 3179-2015) [2016] NAHCMD 230 (9 August 2016), paragraph 7.31 Ibid: paragraph 12.32 Samuels v Petronella Samuels Case No. I 902/2008 (judgment on 26 March 2010) (Unreported),para 32.
22
[52] Ms. Ntelamo-Matswetu, counsel for the defendant, states that a court can only
award spousal maintenance to a spouse if he/she has proven on a balance of
probabilities that he/she is in need of it. She continues to prove that her client’s need
is real in that the defendant earns an income by selling sweets and snacks along the
road which yields approximately N$1 000.00 per month. Of this amount, she pays
N$80.00 for their minor child’s day-care with an additional N$50.00 as a registration
fee at the beginning of the year. The remaining amount is used to pay for the daily
up keep of her family and for water usage. She also expressed that she currently
resides in an informal settlement with their daughter and would like to move to a
place with better municipal services. In addition, counsel states that the defendant
requests this maintenance for only one year which counsel submits is a reasonable
period of time and also considering that she is trying to obtain employment which
earns her a better income. Subsequently, the counsel submits that she has made out
a case for spousal maintenance.
Is the defendant entitled to rehabilitative maintenance from the plaintiff?
[53] I have already established that the plaintiff is responsible for the breakdown of
the parties’ marriage. As per the De Klerk matter cited above, the defendant would
be entitled to claim maintenance from the plaintiff. However, that is not the end of
the enquiry. The defendant must prove to this court that she is in need of this
maintenance and that the plaintiff can afford to pay for such maintenance.
[54] From the facts, it is clear that the plaintiff has always been the breadwinner of
the family. Further, the facts indicate that the defendant is unemployed, whereas the
plaintiff is self-employed, however, the CC he is a co-owner of is currently in financial
difficulty and he derives no income therefrom at this moment. Although this court
finds that the defendant earns very little from selling sweets and snacks and
accordingly is in need of such maintenance, this court however, also weighs this
against the fact that the plaintiff currently does not have a regular income, if at all, as
well as the fact that the defendant has not substantiated how she arrived at an
amount of N$2 500.00 in claiming maintenance from the plaintiff. Accordingly, this
court deems it fair and just to award the defendant N$1 000.00 in spousal
maintenance, as a contribution towards the defendant’s accommodation, per month,
inclusive of water expenses, for one year from the date of the final order of divorce.
23
Costs
[55] In the case of Intamba v Tjapaka the court stated the following in respect of
costs:
‘The basic rule is that, except in certain instance where legislation otherwise
provides, all awards of costs are in the discretion of the court. It is trite that the discretion
must be exercised judiciously with due regard to all relevant considerations. The court's
discretion is a wide, unfettered and an equitable one. There is also, of course, the general
rule, namely that costs follow the event, that is, the successful party should be awarded his
or her costs. This general rule applies unless there are special circumstances present. Costs
are ordinarily ordered on the party and party scale.’33
[56] In this instance the court sees no need to derogate from the general rule that
costs should follow the event. Accordingly, the court grants a cost order in favour of
the defendant.
Conclusion
[57] In light of the above reasoning, I make the following order:
1. The plaintiff’s action for divorce against the defendant is dismissed with
costs.
2. The matter is referred to the case management roll of the Honourable
Justice Geier
3. The court grants judgment for the defendant for an order for the
restitution of conjugal rights and orders the plaintiff to return to or receive
the defendant on or before, the 18th day of July 2017, failing which, to
show cause, if any, to this court on the 15th day of August 2017 at
08h30, why:
33 (A57-2015) [2015] NAHCMD 218 (16 September 2015), paragraph 27.
24
3.1 The bonds of the marriage subsisting between the plaintiff and
the defendant should not be dissolved.
3.2 Custody of the minor child born between the parties should not
be awarded to the defendant subject to the plaintiff’s right of
reasonable access.
3.3 The plaintiff should not pay maintenance in the amount of N$1
000.00 per month in respect of the minor child, which amount is
to escalate at a rate of 8 % per annum on the anniversary date of
the final order of divorce.
3.4 The plaintiff should not pay all pre-school, primary and secondary
school expenses as well as extra-mural activities of the minor
child. The defendant has to consult with the plaintiff about the
choice of school of the minor child.
3.5 The plaintiff should not pay the amount of N$1 000.00 per month
towards the accommodation of the defendant, which shall be
inclusive of water expenses, for a year from the date of the final
order of divorce.
3.6 The joint estate should not be divided.
----------------------------------
E P UNENGU
Acting Judge
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APPEARANCES
PLAINTIFF: M Petherbridge
of Petherbridge Law Chambers
Windhoek
DEFENDANT: H Ntelamo-Matswetu
of Ntelamo-Matswetu & Associates
Windhoek